Export Trade Certificate of Review

ACTION:

Notice of issuance of an Export Trade Certificate of Review, Application No. 03-00008.

SUMMARY:

The Department of Commerce has issued an Export Trade Certificate of Review to the California Pistachio Export Council, LLC (“CPEC”). This notice summarizes the conduct for which certification has been granted.

FOR FURTHER INFORMATION CONTACT:

Jeffrey C. Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number), or by E-mail at oetca@ita.doc.gov.

SUPPLEMENTARY INFORMATION:

Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2003).

The Office of Export Trading Company Affairs (“OETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of the certification in the Federal Register. Under section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous.

Description of Certified Conduct

Export Trade

1. Products

California in-shell and shelled pistachios, raw and roasted, in all forms.

2. Export Trade Facilitation Services (as They Relate to the Export of Products)

All export trade-related facilitation services, including but not limited to: Development of trade strategy; sales, marketing, and distribution; foreign market development; promotion; and all aspects of foreign sales transactions, including export brokerage, freight forwarding, transportation, insurance, billing, collection, trade documentation, and foreign exchange; customs, duties, and taxes; and inspection and quality control.

Export Markets

The Export Markets include all parts of the world except the United States (the 50 states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of theNorthern Mariana Islands, and the Trust Territory of the Pacific Islands).

Export Trade Activities and Methods of Operation

1. CPEC and/ or one or more of its Members, including through Export Intermediaries (to the extent provided in section 1.g) may:

a. Export Sales Price. Establish sales price, minimum sales price, target sales price and/or minimum target sales price, and other terms of sale in the Export Markets;

b. Marketing and Distribution. Conduct marketing and distribution of Products in the Export Markets;

c. Promotion. Conduct joint promotion of Products in the Export Markets;

d. Quantities. Agree on quantities of Products to be sold in the Export Markets, provided each Member shall be required to dedicate only such quantity or quantities as each such Member shall independently determine. CPEC shall not require any Member to export a minimum quantity;

e. Market and Customer Allocation. Allocate geographic areas or countries in the Export Markets and/or customers in the Export Markets among Members;

f. Refusals to Deal. Refuse to quote prices for Products, or to market or sell Products, to or for any customers in the Export Markets, or any countries or geographical areas in the Export Markets;

g. Exclusive and Nonexclusive Export Intermediaries. Enter into exclusive and nonexclusive agreements appointing one or more Export Intermediaries for the sale of Products with price, quantity, territorial and/or customer restrictions as provided in sections 1.a through 1.f, inclusive, above;

h. Non-Member Activities. Purchase Products from non-Members to fulfill specific sales obligations in the Export Markets, provided that CPEC and/or its Members shall make such purchases only on a transaction-by-transaction basis and when the Members are unable to supply, in a timely manner, the requisite Products at a price competitive under the circumstances. Such purchases shall be made through a third party broker, and neither CPEC nor any Member shall directly contact any non-Member supplier in connection with such purchases. In no event shall a non-Member supplier be included in any deliberations concerning any Export Trade Activities; and

i. Transportation Activities. Negotiate favorable transportation rates (volume discounts) and consolidate shipments to or within the Export Markets.

2. CPEC and its Members may exchange and discuss the following information:

a. Information about sales and marketing efforts for the Export Markets, activities and opportunities for sales of Products in the Export Markets, selling strategies for the Export Markets, sales for the Export Markets, contract and spot pricing in the Export Markets, projected demands in the Export Markets for Products, customary terms of sale in the Export Markets, prices and availability of Products from competitors for sale in the Export Markets, and specifications for Products by customers in the Export Markets;

b. Information about the price, quality, source, and delivery dates of Products available from the Members to export;

c. Information about terms and conditions of contracts for sale in the Export Markets to be considered and/or bid on by CPEC and its Members;

d. Information about joint bidding or selling arrangements for the Export Markets;

e. Information about expenses specific to exporting to and within the Export Markets, including without limitation, transportation, trans- or intermodal shipments, insurance, inland freight to port, port storage, commissions, export sales, documentation, financing, customs, duties, and taxes;

f. Information about U.S. and foreign legislation and regulations, including federal marketing order programs, affecting sales for the Export Markets;

g. Information about CPEC or its Members' export operations, including without limitation, sales and distribution networks established by CPEC or its Members in the Export Markets, and prior or current export sales by individual Members (including export price information); and

h. Information about export customer credit terms and credit history.

3. CPEC and its Members may meet to engage in the activities described in paragraphs 1 and 2 above.

4. CPEC may, on a transaction by transaction basis, join with any or all of the Members to bid for the sale of, and to sell, Products to the Export Markets.

5. On a transaction by transaction basis, for the purposes of allocating export quantities, the quantity that CPEC and/or one or more of its Members will commit to the sale will be determined in the following manner:

a. CPEC and the participating Member(s) or non-Member(s) will, without prior consultation, provide above-described quantity data to an Independent Third Party.

b. The Independent Third Party will independently incorporate such information into the joint sales or bid agreement. For the purposes of this provision, “independently” means that the Independent Third Party will not disclose the information obtained from CPEC to another Member, non-Member and/or CPEC.

c. Neither CPEC nor any participating Member shall intentionally obtain the information described in 5(a) above from the Independent Third Party.

Definitions

1. “Export Intermediary” means a person (including a Member) who acts as a distributor, sales representative, sales or marketing agent, or broker, or who performs similar functions, including providing, or arranging for, the provision of Export Trade Facilitation Services.

2. “Independent Third Party” shall mean any individual, partnership, corporation (public or non-public) or other entity (hereinafter referred to as “entity”), or any representative thereof, that is not an officer, director, principal, affiliate, subsidiary or employee of CPEC or any entity that grows, processes, packs, or handles Products.

3. “Member” means a person who has membership in the CPEC Export Trade Certificate of Review and who has been certified as a “Member” within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l) (2003), (currently as set out in Attachment A and incorporated by reference).

A copy of this certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4102, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

Attachment A

Members (within the meaning of section 325.2(l) of the Regulations):

A&P Growers Cooperative, Inc.

Gold Coast Pistachios, Inc.

Keenan Farms, Inc.

Monarch Nut Company

Nichols Pistachio

Primex Farms, LLC

Setton Pistachio of Terra Bella, Inc.